Harpreet Singh Saini vs Kulvinder Singh Saini & Ors
2012 Latest Caselaw 4722 Del

       *          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on: 09.08.2012

+      CS(OS) 293/2012

       HARPREET SINGH SAINI                                 ..... Plaintiff
                    Through:          Mr.Aloke Kumar Bhattacharya, Adv

                      versus


       KULVINDER SINGH SAINI & ORS                 ..... Defendants
                    Through: Mr.Amrit Pal S. Gambhir, Adv for
                              Deft No.1 with Deft No.1 in person

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                               JUDGMENT

V.K.JAIN, J. (ORAL)

CS(OS) 293/2012 and IA Nos. 2243/2012 (under Order 39 Rule 1 and 2 CPC) IA No.6134/2012 (under Order 39 Rule 4 filed by Defendants No. 1 and 3) and IA No.9781/2012 (under Order 39 Rule filed by Deft No.3

1. The plaintiff is the son of defendant No.1. Defendants No. 2 and 3 are the

sister and brother respectively of the plaintiff. The case of the plaintiff is that

property bearing No. RZ 606/21, Tuglakabad Extension, New Delhi was purchased

by his grandfather, i.e., father of defendant No.1 with his own money in the name

of defendant No.1. The plaintiff is seeking partition of the aforesaid property on

the averment that on the death of his grandfather this property became ancestral

property in the hands of plaintiff and the defendants who have 1/4 th share each in

the same.

2. The following are the relevant averments in the plaint, with respect to the

claim of the plaintiff in the suit property:

"4. That, 20.02.1981 a property bearing No.RZ- 606/21, Tuglakabad Extension, New Delhi measuring 130 Sq.Yds, hereinafter referred to as the suit property was got purchased by Sh. Shiv Dass Singh, the father of the defendant No.1 with his own money in the name of the defendant No.1. It is pertinent to mention here that as the defendant No.1 was not earning anything and he was totally dependent on his father, he could not possibly have had sufficient fund in order to acquire the said property. Rather the defendant No.1 could not have acquired the suit property had his father not given him the consideration for the suit property.

7. That, even in the WILL executed by the father of the defendant No.1 dated 16.04.2010 and registered on 19.10.2010 before the Sub-Registrar New Delhi, the father of the defendant No.1 has specifically stated that he financed for the purchase of the aforesaid property in the name of defendant No.1.

8. That, as the suit property was got purchased by the money of the father of the defendant No.1, the suit property constituted ancestral property available for partition among the plaintiff and the defendants.

12. That, the suit property is an ancestral property in the hands of the plaintiff and the defendants and the plaintiff and the defendants have 1/4th right each on the suit property."

3. Assuming the averments made in the plaint to be true, the plaintiff has

absolutely no right, title or interest in the suit property during lifetime of his father.

Section 8 of Hindu Succession Act, to the extent is relevant, provides that the

property of a male Hindu dying intestate shall devolve upon firstly upon the legal

heirs being Class I of the Schedule. The Schedule referred to in Section 8 of the

Hindu Succession Act reads as under:-

THE SCHEDULE HEIRS IN CLASS I AND CLASS II CLASS I Son; daughter; widow; mother; son of a pre- deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre- deceased son of a pre-deceased son; daughter of a pre- deceased son of a pre-deceased son; widow of a pre- deceased son of a predeceased son; [son of a pre- deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre- deceased son].

4. It would be seen from a perusal of the schedule that the grand son is not a

Class I legal heir of a Hindu male in the lifetime of his father. Therefore, assuming

that the suit property was purchased by the grandfather of the plaintiff from his

own funds and was owned by him, as is alleged in the plaint, it, on the death of the

grandfather of the plaintiff, devolved upon all his Class I legal heirs. Since the

plaintiff not being a Class I legal heir of his father has absolutely no right, title or

interest in the suit property.

5. It is settled proposition of law that while considering an application under

Order VII Rule 11 of CPC for rejection of plaint, the Court can take into

consideration only the averments made in the plaint and the documents filed by the

plaintiff. Neither the defence taken in the written statement nor the documents

filed by the defendant can be looked into at this stage. It is also a settled

proposition of law that the truthfulness or otherwise of the averments cannot be

examined while considering such an application.

6. The plaint, taking the averments made in the plaint to be correct, does not

disclose any cause of action, in favour of the plaintiff to seek partition of the suit

property. The plaint is, therefore, rejected.

There shall be no order as to costs. All interim orders shall stand vacated.

V.K.JAIN, J AUGUST 09, 2012 SV/BG